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This parrot can’t be set free

Competence and accountability are bigger issues for the CBI than independence.

Written by Satyananda Mishra |
Updated: September 9, 2014 12:59:09 am

 

In our contempt for the corrupt politician and desperation with the civil servant, we should not remove all the bars of the cage and let the bird fly free. Source: CR Sasikumar In our contempt for the corrupt politician and desperation with the civil servant, we should not remove all the bars of the cage and let the bird fly free. Source: CR Sasikumar

Competence and accountability are bigger issues for the CBI than independence.

The bird does not, any longer, seem to be as caged as it was so famously made out to be last year. It is now clear that no curbs were placed on the bird when it decided to nest freely with whoever it wanted. Whether these meetings enhanced the bird’s new-found freedom or placed it in some other cage, this time by “non-state” actors, will hopefully be known sooner rather than later. But it is clear that it may not always be a good idea to let all such birds fly free.

The issue of the Central Bureau of Investigation’s freedom and autonomy has engaged the courts, civil society and the media for long. It acquired extra urgency in the last few years, when high functionaries of the government were accused of corruption and eventually investigated by the CBI, sometimes under the direct supervision of the Supreme Court. The suspicion in the public mind about the CBI’s freedom in pursuing investigations against public servants stems from the predictable behaviour of the agency in turning the switches against many accused on or off, in tune with the change in composition of the Central government.

The serious-minded in both the media and civil society, however, have little faith in the impartiality of the CBI, although, paradoxically, all of us, including sometimes even the judiciary, keep demanding that every case be handed over to the CBI. Since we have little patience to follow up on the cases so investigated, we lose interest until another high-profile matter surfaces. Taking advantage of our exaggerated dependence on it, the CBI loses no opportunity in creating an impression that it would perform better and reach a higher degree of excellence if only its director were vested with more powers, nobody in government spoke to it, no citizen bothered it with RTI queries and all its funding requests were met, no questions asked. The media has played a stellar role in hyping the CBI’s lack of freedom, in tandem with the courts’ occasional observations.

What is the truth behind this widely held assumption? Is the lack of freedom rooted in deliberate government design or in the CBI’s architecture itself? How much freedom is good for any investigating agency like the CBI? I have some idea about the relationship the government has with the CBI, having worked in the department of personnel and training (DoPT), the administrative ministry. I renewed my knowledge when I heard appeals against the CBI as chief information commissioner. It is no exaggeration to claim that no one in the DoPT ever discusses with any CBI officer the cases it is investigating, formally or informally. There is no arrangement for this. If the minister in charge discusses such matters with the CBI at any level, that must be informal and cannot carry the force of the government. After the Vineet Narain judgment, the CBI director is appointed on the recommendation of the Central Vigilance Commission (CVC) for a fixed tenure of two years, irrespective of the date of retirement, and no government can sack him until he is caught in a flagrant act of misconduct. All other senior officers are also appointed on the recommendation of the CVC, and again for fixed terms.

Once appointed to the CBI, all officers work under the full control of the director, totally insulated from government, as there is simply no need for any contact. Even in the matter of its budget, the CBI enjoys the same freedom and operates under the same discipline as any other government agency. In other words, unless CBI officers willingly, for reasons best known to them, accede to abide by any unlawful request or pressure from anyone in government, there is no institutional mechanism to compel the agency to abide by the wishes of the government.

The CBI is a Central police organisation like the IB, CISF or BSF. IPS officers are posted to senior posts in these bodies on deputation from various state cadres. There is a perpetual crisis in getting an adequate number of such officers. The reduced levels of recruitment to the IPS all through the 1990s has made it all the more difficult to get mid-level officers to man key supervisory positions. The CBI’s own cadres do not go higher than the mid-level, if that. They mostly work as inspectors, deputy superintendents and superintendents of police, that is, the key positions for investigative work. I understand that there has been no direct recruitment to the CBI at the DSP level for more than two decades now — such posts are now being filled only by promotion and, consequently, affecting the quality of manpower at this critical level.

Although the CBI increasingly investigates more cases involving corporate finance, international taxation, company law and banking, its manpower continues to be much less multi-disciplinary than one would expect. In most states, the police are rarely called upon to deal with such matters and, hence, the competence of the IPS officers drawn from such states in these areas would be limited. Like most government departments and agencies, the CBI thus has serious issues of competence. To aggravate the situation, every other day, new investigations are thrust on it from myriad sources, including the courts, as if it has infinite capacity at its command. Competence, or lack of it, is a bigger problem than independence. An incompetent officer is more likely to fall prey to pressures than one who is diligent and knowledgeable.

When we speak of the CBI’s independence or autonomy, we have only some corrupt ministers or politicians or civil servants or PSU officers in mind. We forget that, in all cases of corruption, there are far too many non-state actors who orchestrate the fraud. How do we insulate the CBI from them? If the government will have no control and be only a witness or spectator — and if citizens cannot access any information, since the CBI stands exempted from the RTI by a government notification — the only way to keep tabs on its functioning would be through what has been unfolding in the media over the last few days. This is unseemly and demoralising for the rank and file in the CBI. Because of its very nature, the CBI needs to be strictly accountable. It cannot be let loose, sometimes on innocent and unsuspecting public servants to ruin them, and other times on the guilty only to botch up the cases against them either for lack of competence or due to complicity.

In our contempt for the corrupt politician and desperation with the civil servant, we should not remove all the bars of the cage and let the bird fly free. Both government and citizens must exercise adequate supervisory control over the CBI and its officers, not so much the detail of how it investigates but rather how it conducts itself and, more importantly, what work ethic it adopts and how competently and often it succeeds in bringing the guilty to book — and if there is any accountability of its officers for any failure to do so. The courts cannot supervise it all the time, and they should not. The present controversy can be a good moment to begin these reforms.

The writer is former secretary, DoPT, and a former CIC

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